In Mutual Film Corp. v. Hodges (236 U.S. 248, supra), the contention that there was an invalid delegation of legislative power was rejected where the statute provided that the censor should approve such films as were found to be "moral and proper and disapprove such as are sacrilegious, obscene, indecent or immoral, or such as tend to corrupt the morals" (p. 257, emphasis supplied).Summary of this case from Matter of Joseph Burstyn, Inc., v. Wilson
Argued January 6, 7, 1915. Decided February 23, 1915.
Mutual Film Corporation v. Ohio Industrial Board, ante, p. 230, followed to the effect that state statutes imposing censorship on moving pictures, such as those of Ohio and Kansas of 1913, are valid exercises of the police power of those States, respectively, and do not interfere with interstate commerce, abridge the liberty of opinion, or delegate legislative power to administrative officers. One who is not within the class specified in a state police statute as liable to penalties for violation thereof has no standing to attack the statute as unconstitutional. One who simply imports moving pictures into a State and does not exhibit them has no standing to attack a statute subjecting only exhibitors or those permitting exhibitions to its penalties; nor can he, by asserting constitutional rights, enlarge the character of the statute and make it an interference with interstate commerce when it is a mere exercise of the police power of the State upon things already within it. Savage v. Jones, 225 U.S. 501, distinguished. The fact that an exchange for moving pictures can more conveniently subject the films to censorship than the exhibitors can, does not give the non-exhibiting owner of an exchange a standing to attack the statute as to matters which affect only exhibitors.
Mr. William B. Sanders and Mr. Walter N. Seligsberg, with whom Mr. Harold T. Clark, Mr. Eugene Batavia and Mr. Jackson H. Ralston were on the brief, for appellant.
See brief for appellants in No. 456, ante, p. 236.
Mr. John S. Dawson, Attorney General of the State of Kansas, and Mr. Frank P. Lindsay, for appellees, submitted:
The act in question is not violative of the Constitution of the United States or that of the State of Kansas. Atkins v. Kansas, 191 U.S. 207; Adams v. Milwaukee, 228 U.S. 572; Bank v. Haskell, 219 U.S. 104; Barbier v. Connelly, 113 U.S. 27; Crowley v. Christiensen, 137 U.S. 86; Dent v. West Virginia, 129 U.S. 114; Home Tel. Co. v. Los Angeles, 211 U.S. 265; In re Rahrer, 140 U.S. 545; Jacobson v. Massachusetts, 197 U.S. 11; Kidd v. Pearson, 120 U.S. 1; Lawton v. Steele, 152 U.S. 135; Leisey v. Harding, 135 U.S. 100; Lindsay v. Commissioners, 2 Bay (S. Car.), 61; Meffert v. Medical Board, 66 Kan. 710; Meffert v. Packer c., 195 U.S. 625; Mugler v. Kansas, 123 U.S. 623; People v. King, 110 N.Y. 418; Purity Extract Co. v. Lynch, 226 U.S. 193; State v. Board of Med. Ex., 34 Minn. 387; State v. Nelson, 52 Ohio St. 578; Schmidinger v. Chicago, 226 U.S. 578; Sentell v. New Orleans c. R.R., 166 U.S. 698; United States v. D. R.G.R.R., 213 U.S. 366.
The inspection fee provided for in ch. 294, Kansas, 1913, is not violative of § 10, art. I of the Federal Constitution as laying an impost or duty on picture films and reels imported into Kansas for exhibition purposes. American Steel Co. v. Speed, 192 U.S. 500; Austin v. Tennessee, 179 U.S. 343; Brown v. Huston, 114 U.S. 622; Dooley v. United States, 183 U.S. 151; McLean v. D. R.G.R.R., 203 U.S. 38; Patapsco Guano Co. v. North Carolina, 171 U.S. 345; Pittsburg Coal Co. v. Louisiana, 156 U.S. 343; Woodruff v. Parham, 8 Wall. 123.
The picture films or reels are proper subjects of censor or inspection by a State before they can be exhibited to the public in such State. Bloch v. Chicago, 239 Ill. 251; Chicago v. Brownell, 146 Ill. 64; Chicago v. Bowman Dairy Co., 234 Ill. 340; Peoria v. Calhoun, 29 Ill. 317; Commonwealth v. McGunn, 100 N.E. 337; Gundling v. Chicago, 176 Ill. 340; Hawthorn v. People, 109 Ill. 303; Harrison v. People, 222 Ill. 150; Knopf v. People, 185 Ill. 20; Leisey v. Hardin, 135 U.S. 100; Meffert v. Medical Board, 66 Kan. 710; Meffert v. Packer c., 195 U.S. 625; People v. Creiger, 138 Ill. 401; People v. Cooper, 83 Ill. 585; Plumley v. Massachusetts, 155 U.S. 461; Spiegler v. Chicago, 216 Ill. 114; State v. State Board, 34 Minn. 387; State ex rel. v. Webster, 150 Ind. 607; State v. Hathaway, 115 Mo. 36; State Board v. Roy, 22 R.I. 538; Wilkins v. The State, 113 Ind. 514.
The act in question is not a revenue measure for the general fund of the State, nor is it a tax on interstate commerce in violation of § 8, Art. I of the Federal Constitution. American Steel Co. v. Speed, 192 U.S. 500; Austin v. Tennessee, 179 U.S. 351; May v. New Orleans, 178 U.S. 502; McLean v. D. R.G.R.R., 203 U.S. 38; Patapsco Guano Co. v. North Carolina, 171 U.S. 345; Plumley v. Massachusetts, 155 U.S. 461; Red "C" Oil Co. v. North Carolina, 222 U.S. 380; Savage v. Jones, 225 U.S. 501; Standard Co. v. Wright, 225 U.S. 540; United States v. Knight, 156 U.S. 1.
The act in question is not in contravention of § 1 of the due process clause of the Fourteenth Amendment, by imposing a fee of $2.00 per film or reel inspected under the provisions of said act. Met. Board of Health v. Heister, 37 N.Y. 661; Cincinnati v. Steincamp, 54 Ohio St. 284; Exparte White, 67 Cal. 102; Fire Dept. v. Chapman, 10 Daly, 377; Fire Dept. v. Wendell, 37 Daly, 427; Grant v. Slater M. P. Co., 14 R.I. 380; Hennessy v. St. Paul, 37 F. 565; Hubbard v. Paterson, 45 N.J.L. 310; In re Rahrer, 140 U.S. 546; Lawton v. Steele, 152 U.S. 133; Meffert v. Medical Board, 66 Kan. 710; Mugler v. Kansas, 123 U.S. 623; P. W. Public H. S., § 15; Philadelphia v. Coulston, 12 Phila. 182; People v. King, 110 N.Y. 418; People v. D'Oench, 111 N.Y. 359; State v. Cramer, 85 Ohio St. 349; State v. Moore, 104 N.C. 714; St. Paul v. Dow, 37 Minn. 20; Wood v. The State, 42 Ohio St. 186; Woodruff v. Railroad Co., 59 Conn. 63.
The act in question is not violative of § 1 of the Fourteenth Amendment in the matter of free speech and free press, or by § 11 of the bill of rights of the constitution of Kansas. Adams v. Milwaukee, 228 U.S. 572; Bartmeyer v. Iowa, 85 U.S. 133; Costello v. New Orleans, 142 U.S. 88; Gundling v. Chicago, 177 U.S. 183; In re Rapier, 143 U.S. 132; In re Horner, 143 U.S. 570; In re Banks, 56 Kan. 242; Mahone v. Justice, 127 U.S. 700; Murphey v. California, 225 U.S. 623; New York v. Carr, 199 U.S. 557; Orient Ins. Co. v. Daggs, 172 U.S. 561; Rosenthal v. New York, 226 U.S. 260; Robertson v. Baldwin, 165 U.S. 275; Selover v. Walsh, 226 U.S. 112; Taylor v. Judges, 179 U.S. 410.
The expense for approval of films would not be $39,000 for the first three months, or $25,000 for the remainder of the year; nor would the total expense to the State exceed $6,000 for the first year, or more than $3,000 per annum thereafter. Gundling v. Chicago, 177 U.S. 189; McLean v. D. R.G.R.R., 203 U.S. 38; Woodruff v. Parham, 75 U.S. 123.
Necessarily the first factor to be considered is the law of the State. It is entitled "An Act regulating the exhibiting or using of moving picture films or reels; providing and regulating the examination and approval of moving picture films and reels, and fixing penalties for the violation of this act, and making an appropriation for clerical help to carry this act into effect."
The following are its provisions: On and after April 1, 1913, it shall be unlawful to exhibit or use any moving picture film or reel unless the same shall have been examined and approved by the Superintendent of Public Instruction. Films used in institutions of learning are exempt from the provisions of the act. It is made the duty of such officer to examine the films or reels intended for exhibition and approve such as he shall find to be moral and instructive and to withhold his approval from such as tend to debase or corrupt the morals. His approval is to be stamped in writing upon the films or reels approved. He is to keep a record of examinations made by him, noting those approved and those not approved, stating the reasons for the latter. A charge of $2.00 is to be made for each examination. He is given the power and authority to supervise and regulate the display of all moving picture films or reels in all places of amusement or elsewhere within the State, to inquire and investigate, and to have displayed for his benefit to aid him in his investigation, those which are intended to be displayed, and shall approve such as shall be moral and proper and disapprove such as are sacrilegious, obscene, indecent or immoral, or such as tend to corrupt the morals. His disapproval of any film or reel may be reviewed by a commission consisting of the Governor, Attorney General, and Secretary of State, and if they or a majority of them find the film or reel fit for exhibition it shall be approved. It is the duty of every person exhibiting or permitting to be exhibited any film or reel within the State to furnish the Superintendent of Instruction, if he require it, a description of such film or reel and a description of its scenes and purposes and to exhibit and display it for his examination and approval. Any person exhibiting or permitting to be exhibited any unapproved film or reel shall be guilty of a misdemeanor, and each liable to suit and separate fines.
It will be observed that the law makes only exhibitors or those permitting exhibitions of unapproved films liable to the penalties of the act, and, as we have seen, it is alleged by the defendants that as complainant is in neither class, it has no standing to attack the statute. To this complainant replies that its sales are interfered with, and invokes, as sustaining its right to complain, Savage v. Jones, 225 U.S. 501. This may be; but complainant, by asserting such right, cannot enlarge the character of the statute or give to it an operation which it does not have, — cannot, for instance, make the importation of films into the State an offense under it, and not their exhibition, which only it punishes — cannot, therefore, make the act an interference with interstate commerce instead of what it is — an exercise of the police power of the State upon things within the State. Nor can it make any difference that the "exchanges can more conveniently submit the films for approval than exhibitors can."
The opinion in No. 456 becomes applicable here. Indeed, this case was argued conjointly with that and submitted on the same briefs. It is here contended that the Kansas statute has the same invalidity and for the same reasons as it was contended there that the statute of Ohio had. We need not, therefore, repeat the reasoning. It establishes that both statutes are valid exercises of the police power of the States and are not amenable to the objections urged against them — that is, do not interfere with interstate commerce nor abridge the liberty of opinion; nor are they delegations of legislative power to administrative officers.